Sunday, August 12, 2007

CEC: Did not claim authority to ‘remove’ EC

Gopalaswami’s stand opposed

Special Correspondent

N. Gopalaswami

New Delhi: Chief Election Commissioner N. Gopalaswami’s recent assertion in an affidavit filed in the Supreme Court that he had the power, as per Article 324(5) of the Constitution, to remove an Election Commissioner has found favour neither with the government nor within the Commission.

Prime Minister Manmohan Singh, who has studied the matter, is known to be strongly opposed to Mr. Gopalaswami’s stand, as it will erode the independence and equality of the Election Commissioners.

Union Law Minister H.R. Bhardwaj made it clear to journalists that he disagreed with Mr. Gopalaswami’s view. “The Chief Election Commissioner has no power to decide the issue. It is solely the prerogative of the President.”

The political context is the BJP’s campaign to have Election Commissioner Navin Chawla removed from the Commission. Earlier this week, BJP leader Jaswant Singh withdrew the petition that he had filed in the Supreme Court against Mr. Chawla. While allowing the withdrawal of the petition, the court made it clear that it was not expressing any opinion on the CEC’s power vis-À-vis his fellow Election Commissioners.

A senior and responsible officer of the Commission points out that the view expressed by Mr. Gopalaswami were his “personal views” and not that of the Commission.

It is further pointed out that the stand taken by Mr. Gopalaswami is at odds with the consistent position the Election Commission has taken before the government and the Law Commission of India on the question of removal of Election Commissioners.

The 1993 amendment to the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act, 1991 brought parity between the CEC and the ECs in matters of salary, perks, warrant of precedence, and voting rights. The purpose of the 1991 law and the 1993 amendment was to bring about equality between the CEC and ECs in all matters. In the 1991 Act, the CEC was deemed to have the same protection and privileges as that of a judge of the Supreme Court and the ECs were to be on a par with a High Court judge. The 1993 amendment made them equal and stipulated that the Commission’s decisions would be by consensus or, if necessary, by a majority vote.

What has surprised Election Commission officials about Mr. Gopalaswami’s stand is that as late as June 2007 the Election Commission wrote to the government to correct the ambiguity in the matter of the removal of the ECs.

In response to a news report titled ‘Gopalaswami’s stand opposed,’ published in these columns on Saturday, the Chief Election Commissioner writes:

“I am quite amused by a story which was published on the first page of The Hindu, dated August 11, 2007 wherein an assertion has been attributed to me which I never made and then proceeds to demolish the ‘assertion’ ; I never made.

“If only your correspondent had taken the trouble of perusing or of checking the contents with me, he would not have categorically stated in the first paragraph of the story that I had asserted in my affidavit filed in the Supreme Court that I had the power under Article 324(5) of the Constitution to remove the Election Commissioner. My affidavit nowhere talks about removal. In fact the story under the byline of the Legal Correspondent of The Hindu of the 3 August, very clear ly brings out ‘CEC can recommend action against Commissioner.’ In fact, only your newspaper of 3 August edition carried the content of my affidavit correctly while some other papers used the word ‘removal’. I had sent word to them that their reporting was incorrect.

“Your paper’s edition of 8 August, however, committed the same mistake and used the word ‘removal’ which I immediately pointed out to your Legal Correspondent.

‘Irrelevant’

“Having attributed an assertion to me which I never made, the news item then proceeds to demolish it in paras 2 and 3 quoting other authorities that ‘CEC has no power to decide the issue’ since I never made the assertion which the correspondent attributes to me. In the first instance, his ‘demolition’ of my ‘assertion’ is entirely irrelevant.

“The next point is about the view of the senior and responsible officer of the Commission who reportedly said that my view was a ‘personal view.’ I would like to point out that the Supreme Court wanted the opinion of the CEC and in that case only CEC can express his opinion and to that extent, they are the ‘personal’ views of the CEC. As regards the Commission’s stand in regard to the removal of any Election Commissioner is concerned, the Commission has in the past and even now subscribes to the view that all the three should be treated equally. However, until Article 324(5) of the Constitution is amended, the legal position is that in regard to the removal, the CEC and the ECs are placed on different footing.

“It may perhaps be of interest to your newspaper to note that in his written statement before the Supreme Court, Shri Ram Jethmalani, the counsel for Shri Navin Chawla, clearly concedes the point in para 10 that ‘A Chief Election Commissioner knowing from his personal knowledge that an Election Commissioner is unfit to hold that office must be thoroughly incompetent or corrupt himself, if he takes no action at all.’ (emphasis added). The Supreme Court had the foll owing to say in the case of T.N. Seshan, Chief Election Commissioner of India vs. Union of India (1995) 4 SCC 811 ‘the Scheme of Article 324 is that after insulating the CEC by the first proviso to Clause (5), the ECs and RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC. Of course, the recommendation for removal must be based on intelligible, and cogent considerations which would have relation to efficient functioning of the Election Commission… It is, therefore, needless to emphasise that the CEC must exercise this power only when there exists valid reasons which are conducive to efficient functioning of the Election Commission. This, briefly stated, indicates the status of the various functionaries constituting the Election Commission.’

“Since your newspaper has attributed to me an assertion which I never made, in fairness, I expect that this clarification will be published with equal prominence.

“I am attaching herewith a copy of my affidavit before the Supreme Court, and a copy of para 10 of the written statement submitted by Shri Ram Jethmalani, Senior Advocate appearing on behalf of Shri Navin Chawla.”

New Delhi: Chief Election Commissioner N. Gopalaswami clarified in a communication to The Hindu that he had stated before the Supreme Court only that the CEC could recommend the removal of an Election Commissioner, not that he had t he power to remove an Election Commissioner on his own.

Reacting to the report published on Saturday, he said it had incorrectly stated that he had asserted that as CEC he had the power to remove an Election Commissioner under Article 324 (5) of the Constitution. “Having attributed an assertion to me which I never made, the news item then proceeds to demolish it in paras 2 and 3, quoting other authorities that the ‘CEC has no power to decide the issue.’ Since I never made the assertion which the correspondent attributes to me in the first instance, his ‘demolition’ of my ‘assertion’ is entirely irrelevant.”

Quite apart from CEC’s clarification, what has come under challenge from the Government is his statement in the affidavit filed in the Supreme Court that “it is the understanding of the Chief Election Commissioner that the powers vested in him under the second proviso to Article 324 (5) of the Constitution can be exercised by him on information which has come to his knowledge during the course of his functioning as the CEC or on the basis of any formal representation or petition filed before him by a political party or by any other persons or body. In the former case, it would be in exercise of suo motu powers by the Chief Election Commissioner, while in the latter case he would be acting on the basis of the petition or representation filed by a third party.”

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